No Right To Create Immersion Pond For Ganpati Idols In Public Park; Private Religious Sentiments Can’t Prevail Over Civic Governance: Bombay HC

The Bombay High Court on a writ petition filed by Shri Durga Parmeshwari Seva Mandal has held that no person or ‘mandal’ has the right to privately create an immersion pond for Ganpati idols in a public park maintained by the Municipal Corporation. It further held that private religious sentiments cannot prevail over civic governance.

The petitioners sought permission from the Court to create a private immersion pond for the upcoming Ganesh Chaturthi festival. However, the Court refused to interfere with the decision of the Brihanmumbai Municipal Corporation (BMC) whereby it did not allow the petitioners to create the said pond.

A Division Bench of Justice G.S. Patel and Justice Kamal Khata said, “What we are concerned with under Article 226 of the Constitution of India is judicial review of administrative action. It must therefore be shown that the impugned municipal action is somehow vulnerable either for a procedural irregularity or on account of being arbitrary, unreasonable or in violation of some fundamental or other legal right. No person, let alone a Mandal, has any fundamental — or any other — right to privately create an immersion pond in a public park maintained by the Municipal Corporation. … Private religious sentiments, no matter from what quarter they come, cannot prevail over the much wider concerns of civic governance.”

The Bench noted that even if the Municipal Corporation was to say that in a particular area, no immersion pond could be permitted at all for reasons of civic administration (public health, hygiene, and so forth), the Court would not have been able to interfere.

Advocate Aniruddha Joshi represented the petitioners while Advocate Purnima Kantharia represented the BMC.

The complaint of the petitioners was that such a refusal by BMC was selectively done to target the Mandal at the instance of the respondent, a former corporator, who made a representation to the Minister of the State Government.

The High Court in the above regard observed, “If the allegation is one of the mala fides that is independently a ground to reject the Petition. But merely by pointing fingers at this or that corporator or minister does not substantiate a case nor does it provide a cause of action. We have no hesitation in holding that a corporator or minister, as part of the obligations of such an office to the electorate, is fully entitled to receiving and, if thought fit, acting on a representation made by any person. Per se, that cannot be objectionable. We disapprove entirely of this approach in writ petitions brought before us of simply naming or pointing to some politician to suggest that, axiomatically — i.e., because some politician has acted in a certain manner — therefore, and necessarily, an administration action is actuated by malice or mala fides.”

The Court said that for instance, the respondent made a representation to the Minister and he, in turn, evidently asked the Municipal Corporation to look into the matter, the same is no ground for interference.

“Indeed, we find the approach of the MCGM to be entirely salutary. These are after all matters of civic and municipal administration and should not be left to private parties at all. … The contention that because permission was granted in the past, therefore it must be granted for all time to come is one that has only to be stated to be rejected. Equally, the submission that the Petitioner is being allegedly ‘singled out’ is without merit”, also observed the Court.

Furthermore, the Court noted that there is nothing in the petition to show that others similarly placed have been granted permission because considerations will vary from site to site, locality to locality, park to park and pond to pond. It said that each case must be considered on its own merits and that there is no one-size-fits-all mantra to be adopted.

“We find nothing objectionable in the impugned order. … The impugned order meets the test of Wednesbury unreasonableness, for it is eminently reasonable and sensible. It also satisfies the doctrine of proportionality by striking the correct balance between a private demand and matters of civic governance”, concluded the Court.

Accordingly, the High Court rejected the petition.

Cause Title- Shri Durga Parmeshwari Seva Mandal & Ors. v. The Municipal Corporation of Greater Mumbai & Ors. (Neutral Citation: 2023:BHC-OS:9710-DB)

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